Lessons From The Law
Author is Senior lecturer at KCEF Law College Pulwama
Is food as important as freedom and bread as important as the ballot box? Can there be any meaningful enjoyment of human rights if poverty is pervasive and hunger and disease stalk the population?
In the context of Asia and Africa it is legitimate to ask whether socio- economic rights like the ‘right to basic necessities and the right to development’ are entitled to the same protection as civil and political liberties.
Before these questions are answered it is necessary to note the traditional distinction between socio-economic rights and civil and political liberties.
The former require substantive and affirmative action on the part of the State and are referred to as ‘positive rights’. They make explicit claims upon government. They entail massive allocation of public resources. They require legislative and administrative decisions meant to protect the weak from deprivation and to aid the deprived.
Civil and political liberties, on the other hand, are referred to ‘negative liberties because they thrive on non-interference from the State. Justice Hugo Black called them a list of Thou shall Nots’ It is submitted that such a distinction ought not to be made. Human rights are indivisible, interdependent and interrelated”. The traditional, “first generation” political and civil liberties cannot be separated from socio-economic protections because political and legal principles alone cannot ensure a regime of human rights. Socio-economic justice is also important. The satisfaction of basic needs is an essential aspect of human dignity. ‘Positive rights like the right to education, are central to the human rights quest because they help to create the socio-economic conditions which are conducive to the enjoyment of civil liberties.
For a very, long time international law has recognised this connection between human rights and poverty alleviation. Article 11 of the International Covenant
on Economic, Social and Cultural Rights (1976) declares that the State Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to continuing improvement of living conditions”. Article 14 of the Vienna Declaration explicitly acknowledges that the existence of, widespread extreme poverty inhibits the full and effective enjoyment of human rights; its immediate alleviation and eventual elimination must remain a high priority of the international community’. The United Nations Declaration on Eradication of Hunger likewise recognises that eradication of rural poverty and agrarian reforms are prerequisites for the realisation of the goals of the Universal Declaration of Human Rights. Reference may also be made to Article 22 of the African (Banjul) Charter on Human and People’s Rights (1986).
Unfortunately the Western-dominated human rights dialogue tends to concentrate on civil and political liberties and sees these liberties as foundation on which socio-economic justice can be built. In a throwback to the language of the Cold War, some Western commentators claim that economic, social and cultural rights are not really rights at all, but mere goals that we should aspire, towards. They also argue that ‘positive rights’ are a smokescreen for violations of civil and political rights.
Author is Senior lecturer at KCEF Law College Pulwama